When Agencies Become Businesses: The EPA’s Failure to Regulate Hydraulic Fracturing

By Audrey Ackerman*

Environmental protection is in flux. Prioritizing economic growth over ecosystem sustainability has become a guiding feature for the current regulatory landscape.[1] These interests are competing at an international scale: as global warming continues to melt the northern polar ice cap, the estimated 30% of undiscovered natural gas reserves located in the Arctic are becoming more accessible for hydraulic fracturing (or “fracking”) wells.[2]

The Arctic coastal states—Canada, Denmark, Norway, Russia, and the United States—have prepared to bid for access to these resources by aggressively asserting claims to the continental shelves off their coasts. Four of the five countries that have ratified the United Nations Convention on the Law of the Sea (UNCLOS) are subject to UN environmental regulations that effect the country’s access to subsea resources in the 200-mile zone off their shoreline.[3] The United States is the only coastal state not to ratify UNCLOS, citing a desire to maintain exclusive control over seabed resources off the nation’s shore.[4]

The United States’ current offshore fracking regulation can take advantage of Arctic resources in a way no other coastal nation can. Whereas Canada, Denmark, Norway and Russia are bound by UNCLOS to limit resource exploitation through responsible policy informed by extensive data collection and sharing,[5] the U.S. Department of Interior—which is charged with protecting and managing the Nation’s natural resources—has perpetuated a lack of research and substantive oversight that allows parts of the offshore drilling industry to self-regulate. Making economic growth the focus of environmental agencies disregards the environmental and human cost of putting industry first.[6]

Within the Department of Interior, the Environmental Protection Agency, the Bureau of Ocean Energy Management (BOEM), and the Bureau of Safety and Environmental Regulation (BSEE) regulate offshore drilling.[7] Fracking, a type of offshore drilling, is a method to extract oil or natural gas from low permeability rock formations using a mixture of water, chemicals, and proppants (e.g. sand or ceramic beads).[8] The water mixture is pumped into subsurface rock formations to create pressure high enough to fracture the rock in a network of interconnected fissures.[9] These fissures are held open by the proppants and allow oil or natural gas to flow from the rock pores into the production well.[10]

The technique of forcefully injecting fluids into subsurface rock releases high concentrations of chemicals from the produced water, as well as substances mobilized by the water flow like toxic heavy metals, volatile and semivolatile organic compounds, and radionuclides that mix with ocean and surface waters.[11] Some of these chemicals have been linked to reproductive/developmental problems, destruction of nerve tissue, and cancer.[12]

In response to public health concerns about fracking wastewater, the EPA conducted a 5-year study.1173 chemicals were gathered through voluntary self-reporting. (Under the Energy Policy Act of 2005, fracking fluids that exclude diesel are statutorily exempt from any reporting requirements.[13]) However, data on the carcinogenicity of the chemicals existed for only 147 (13%) of the total.[14] While the limited data revealed that produced water was more toxic than the original fracking mixture, the researchers’ unembellished conclusion is that the study demonstrates that there is a “significant knowledge gap” that prevents understanding the risk fracking chemicals pose to public health and the environment.[15]

Despite this conclusion, the EPA has announced that “the study is now complete” and will not pursue prospective case studies.[16] The Scientific Advisory Board (SAB) was asked to comment on the assessment and voiced concern that the EPA (1) chose not to conduct “various assessments, fields studies, and other research” on fracking public health risks and (2) that the “high-level conclusion” that there was no evidence that fracking has had an impact on U.S. drinking water was unsupported by the study’s actual findings.[17]

The SAB was concerned, and we should be too. The position that a lack of existing data, due to a lack of data collection, supports the conclusion that no evidence exists is not rational. Moreover, the EPA’s response garners suspicion that the Clean Water Act (CWA) is not being updated or enforced in a way that prioritizes human and environmental health.[18] This inference is directly supported by President Trump’s many executive orders reducing environmental protection in exchange for reduced energy costs, new jobs, and making America more energy independent. Executive Order 13778 calls for a review of the CWA with an emphasis on facilitating economic growth.[19] Order 13783 demands immediate review of all energy policies in all executive departments and agencies that hinder economic growth and to rescind all policies that “unduly burden” development.[20] Order 13795 attempts to undo Obama’s ban on offshore drilling in the outer continental shelf and in the Arctic.[21] The list goes on.

This is not to suggest that prioritizing economic gain is an unworthy goal. But the purpose of environmental regulatory agencies is to the regulate the environment, not to stimulate the economy. No economy can survive without resources; we would do better as a country if we took their protection seriously.

*Audrey Ackerman is a junior editor for MJEAL and can be reached at aaudrey@umich.edu.

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[3] Nat’l Ocean Service, What is the Law of the Sea?, https://oceanservice.noaa.gov/facts/lawofsea.html (last visited Nov. 30, 2017).

[4] Roncevert Ganan Almond, U.S. Ratification of the Law of the Sea Convention: Measuring the raison d’Etat in the Trump Era (May 24, 2017), https://thediplomat.com/2017/05/u-s-ratification-of-the-law-of-the-sea-convention/.

[5]United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

[19] The White House, Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule (Feb. 28, 2017) https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic.

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The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

The Michigan Journal of Environmental & Administrative Law (MJEAL) is The University of Michigan Law School's newest legal journal. MJEAL is made possible by a generous grant from the Graham Sustainability Institute at the University of Michigan.

The journal publishes articles, student notes, comments, essays, and online blog posts on all aspects of environmental and administrative law.